The Articles of Confederation
If Jay Leno were to conduct a “Man on the Street” segment and ask random Americans to name the first constitution for the United States, the answers would probably range from, “The Declaration of Independence,” to “the Preamble,” to “Who cares?” The answer, of course, is The Articles of Confederation and Perpetual Union. American ignorance of the Articles is problematic for several reasons, not the least of which being a lack of understanding about the fundamental structure of the American general government. The Articles of Confederation is, in fact, the most maligned and misunderstood document in American political history. It is the bedrock of the United States Constitution which replaced it, and the Founders’ conception of Union and the appropriate powers of government can be found in its Thirteen Articles.
The Articles of Confederation, principally authored by John Dickinson of Delaware, was formally ratified by the States in 1781, though both Dickinson and Benjamin Franklin had drafts in 1776 shortly after the States declared their independence from Great Britain. The central government–or general government as the founding generation called it–did not have an executive or judicial branch under the Articles, and the Congress did not have the power to tax or create a standing army. It could appropriate and borrow money, regulate trade, and make treaties, but the States could ignore these treaties, and the Congress did not have the power to regulate interstate trade. If the Congress needed money or troops, it had to make formal requests to the States and those would often be ignored, though perhaps not maliciously. The States were strapped financially themselves and often did not have the resources to cover the cost of two governments. Any legislation required a two-thirds majority to pass, making new laws difficult to enact. Most important, the general government could not coerce the States into obedience.
Each State had equal representation and could send between two and seven representatives. John Adams called them “ambassadors” of the States, meaning that the founding generation viewed the central government as little more than a pseudo united nations. Often, Congress did not have a quorum, particularly in the months when the Congress met at Annapolis, Maryland. Northerners complained it was too hot and unsanitary and Southern culture (liquor drenched galas and balls) too decadent. Proponents of constitutional reform called the central government weak and ineffective.
Yet, the Constitution retained much of the character of the Articles of Confederation. The word “federal,” as in the government established by the United States Constitution in 1788, and “confederation” carried the same meaning in the eighteenth-century. In fact, both Alexander Hamilton and James Madison called the general government under the Constitution a “confederation” in the Federalist essays. The Union was a league of States both during the Articles of Confederation and after the Constitution was ratified in 1788. It became “more perfect,” but the nature of the Union itself was unaltered. It was and still is a Union of States–a federal Union or confederation–and as both the text of the Articles and the 10th Amendment to the Constitution make clear, the States retain all powers not delegated to the central government. The Articles included the qualifying word “expressly” in Article 2, and there was an attempt to include the same qualifier in what became the 10th Amendment to the Constitution, but it was deemed redundant. Expressly was implied by both the Preamble to the Bill of Rights and the language of the Amendment itself.
Much of the wording of the Constitution was lifted directly from the Articles as well and carries the same meaning. The now infamous “general welfare clause” of the Constitution can be found in Article 3 and Article 8 of the Articles of Confederation. As Roger Sherman explained in the Philadelphia Convention in 1787, the “general welfare” was defined as “defense against foreign danger…against internal disputes and a resort to force…treaties with foreign nations…regulating foreign commerce and drawing revenue from it….All other matters, civil and criminal, would be much better in the hands of the states [emphasis added].” Sherman added the clause to the Constitution, so his understanding has merit. The “general welfare” was for the Union, not individuals, and because both the Articles and the Constitution act on the States (the “them” in both documents) and not individuals, the meaning did not change from one document to the next. The same can be said for the “privileges and immunities” and the “full faith and credit” clauses of the Constitution. Both are found in Article 4 of the Articles of Confederation. There are others, but these are the most cited of the document.
The Articles of Confederation was the first Constitution for the United States. The name of the Union, “The United States of America,” is found in Article 1 of the Articles of Confederation and the general temper of the Articles carried forward to the Preamble of the United States Constitution. Article 3 of the Articles and the Preamble are similar in both language and tone. When the Constitution was ratified in 1788, the proponents of the document insisted that nothing changed in regard to the federal nature of the government. The Union was not altered, the government had not been consolidated, and the States still retained all powers not enumerated in the Constitution, just as in the Articles of Confederation. Constitutional scholars would do well to read the Articles in conjunction with the Constitution. Certainly, the Constitution strengthened the powers of the general government, and astute opponents of the Constitution warned that these powers would ultimately be abused, but the Constitution was sold to and understood by the States in 1788 to be little more than an amended form of the Union established by the Articles in 1783. If that is the case, then the Articles should not be ignored or denigrated, but studied as the foundation of the general government of the United States, both in principle and spirit.
Read The Articles of Confederation here: https://constitutingamerica.org/?p=3762
March 27, 2013 – Essay #28
Brion McClanahan holds a Ph.D. in American History from the University of South Carolina. He is the author of The Founding Fathers Guide to the Constitution, The Politically Incorrect Guide to the Founding Fathers, Forgotten Conservatives in American History, and The Politically Incorrect Guide to Real American Heroes. You can find him at www.brionmcclanahan.com or at Tom Woods’s Liberty Classroom, www.libertyclassroom.com
I too had observed the mixed use of terms “federal” interchangeably with “confederation” during the AoC and ratification period of the 2nd federal constitution. As time went by, the use of the term “federal” became dominant as “federalism” itself has historically been loosely defined; but I had observed one characteristic that differentiated classical confederacies with the federal extended republic that the 2nd federal constitution setup.
Confederacies truly were represented by “ambassadors” or emmisaries of a sort who only formed a quorum in session when summoned. If they are not summoned then there is no session: this is a non-seated government. In modern parlance, this is what we know to be an “emergency session”. Confederacies called a meeting when a presidential agent of the confederacy received word for cause to call a session.
A federation, on the other hand, tended rather to be one of life, or revolving appointed, senators who assembled without being summoned. Quorum would be called when enough senators had gathered on an appointed day as they were not required to be summoned for the session to start. There need not be an emergency to call a session; but of course politicians would come wily with plenty of “emergencies” to demand some sort of action from another region of the federation much like how Frederic Bastiat would say of government that would “concoct the poison and the antidote in the same laboratory.” This then is a seated form of federal government.